Thoo v The Hills Shire Council

[2022] NSWLEC 1219

Land and Environment Court

New South Wales

Medium Neutral Citation:

Thoo v The Hills Shire Council [2022] NSWLEC 1219

Hearing dates:

21 April 2022

Date of orders:

2 May 2022

Decision date:

02 May 2022

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

The Court Orders:

(1) The appeal is upheld.

(2) Development Application No 468/2021/ZA for a three lot subdivision of Lot 317 DP 746500, No 18 Flora Court, Baulkham Hills is approved subject to the conditions in Annexure A.

(3) The exhibits are returned, other than exhibits A and 1 which are retained.

Catchwords:

DEVELOPMENT APPLICATION – subdivision- conditions of consent

Legislation Cited:

The Hills Local Environmental Plan 2019, cll 2.6, 4.1, 7.2

Cases Cited:

Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

The Hills Development Control Plan 2012

Category:

Principal judgment

Parties:

Ricky Thoo (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Wilshire Webb Staunton & Beattie (Respondent)

File Number(s):

2021/224561

Publication restriction:

No

Judgment

1. COMMISSIONER: Development Application 468/2021/ZA was lodged with The Hills Shire Council on 9 October 2022 and sought consent for the subdivision of land at 18 Flora Court Baulkham Hills into four lots. The Council had not determined the application within the prescribed period and the applicant is appealing its deemed refusal.

2. Following a conciliation conference in this Court and dialogue between the parties, the applicant amended the application by lodgement of additional plans and details on the NSW Planning Portal on 12 April 2022, following an Order made in this Court that granted leave to the applicant to rely on those amended plans.

3. As a result of the amendments, the Council is satisfied that the proposed subdivision is appropriate however, there is no agreement between the parties in relation to one of the proposed consent conditions.

4. The focus of the appeal is now that particular condition.

The site and locality

5. The site is legally identified as Lot 317 in DP 746500 and is known as 18 Flora Court, Baulkham Hills. It comprises an irregular shaped lot with two street frontages, one onto Flora Court equating to approximately 8.825m and one onto Barina Downs Road of approximately 75m. Site area is around 3,027m².

6. The site contains a two-storey dwelling house that fronts Flora Court. It has a consistent fall in gradient from the north-eastern corner to the south-western corner of the site with a steep drop of approximately 2.43m in the middle portion of the site. The site slopes down towards the south east by approximately 10.2m towards Flora Court.

7. It is located on the northern side of Flora Court at the end of the cul-de-sac road and the southern side of Barina Downs Road. Development along Flora Court and within the locality comprises detached dwellings and secondary dwellings consistent with the low density zoning. Multi-dwelling housing is located to the north of the site on the opposite side of Barina Downs Road in the Medium density zone.

8. The original subdivision of the site included a Restriction as to User, benefitting the Council in the following terms:

“No development shall be carried out within the restricted development area designated by the symbol (D) as defined on the abovementioned plan without prior written consent of the Council of the Shire of Baulkham Hills.”

9. The restricted development area (RDA) has a width of 30m and runs across the entire Barina Downs frontage of the site. It extends to the east to Windsor Road and continues along those adjacent properties, the rear boundaries of which adjoin Windsor Road, with varied width. The RDA is a vegetated area however, not all of the width of the restricted area is planted with trees or vegetation other than grass, the extent of the heaviest planting is within the immediate frontage areas.

10. According to the Council’s Amended Statement of Facts and Contentions, the RDA serves to retain the view corridor from the Windsor Road ridgeline generally to the west towards Norwest and Bella Vista Farm Park. The view corridor through this site from Windsor Road is largely screened by the established vegetation both within the site, adjoining properties, and the Barina Downs road frontage.

11. The site is also burdened by a further restriction as to user, benefitting the Council in the following terms:

“Cut and fill operations during the building on all lots herby burdened shall be restricted to a maximum of 1 metre of fill.”

The proposal

12. The amended application reduced the number of lots in the proposed subdivision from four to three and included additional information that had been sought by the Council to allow assessment of the proposal.

13. The application now proposes the subdivision of the site into three lots.

14. Lot 1 is proposed to be 1056m² and would be located on the western side of the site with a frontage of 39.33m to Barina Downs Road and an area of 1056m².

15. Lot 2 would be located in the north eastern corner of the site with frontage of 35.66m to Barina Downs Road and an area of 1062m².

16. The RDA would remain on proposed Lots 1 and 2 however would be reduced in width from 30m to 7.5m. The plans provide for a 2m wide strip along the eastern boundary of proposed Lot 2 to also be included in the RDA however, it is the view of all relevant experts in these proceedings, and the Council accepts that view, that this area is not required. A condition of consent reflecting this agreement has been incorporated in the draft conditions.

17. Lot 3 would include the existing dwelling and front Flora Court with an area of 908.5m².

18. To ensure adequate site drainage, the application proposes the construction of retaining walls at the rear of proposed Lot 3 in the steeper portion of the site. The walls have been designed to address the restriction on filling of the site and to facilitate inter allotment drainage. Drainage of the site would be through an easement across Lot 3 in favour of Lots 1 and 2.

19. New driveway crossings would be constructed in Barina Downs Road to service proposed Lots 1 and 2 with existing access off Flora Court retained to service Lot 3.

Planning controls

20. The site is zoned R2 Low Density Residential pursuant to the provisions of The Hills Local Environmental Plan 2019 (LEP).

21. Development for the purpose of subdivision is permitted with consent in the R2 zone pursuant to the provisions of cl 2.6 of the LEP.

22. Clause 4.1 of the LEP establishes minimum lot sizes and a minimum site area of 700m² applies to the site. The area of all lots exceed the minimum development standard.

23. Clause 7.2 of the LEP applies to earthworks and specifies matters that must be considered in determination of a development application. The Council advises the amended application is consistent with the provisions of this clause.

24. The Hills Development Control Plan 2012 (DCP) applies to the site with Parts B and C relevant to determination of the application. It is common ground that the application is consistent with the provisions of that plan.

The contentions

25. The amendments made to the application have addressed all of the contentions detailed in the Amended Statement of Facts and Contentions filed with the Court on 13 April 2022. Accordingly, the only matter that the Court is required to determine is whether or not draft condition 1 should be imposed in the form proposed by the Council. In particular, the Court is to determine whether the applicant should prepare further photomontages of the site and whether those photomontages should form part of the approved plans for the development.

26. The wording of condition 1b, the disputed condition, is as follows:

“The photomontage must be amended to include more detail confirming the accuracy of the building platform outline shown such as plotting the existing ground levels at the trees and identifying the ground level RL for each building platform. Verification by the architect that the height plan and envelope is an accurate representation of the nominated building envelope in respect of position, scale and perspective must also be provided. This amended photomontage must be prepared and submitted to Council’s Manager - Subdivision and Development Certification for approval before a Subdivision Works Certificate can be issued.”

The evidence

27. Expert evidence was presented from engineers and arborists in relation to the original contentions in the case however, as these experts agreed that the amendments addressed those contentions relevant to their areas of expertise, they were not required for cross examination.

28. Expert town planning evidence was heard from Mr V Hardy for the applicant and Mr P Hurley for the Council.

29. They agreed that the purpose and intent of the RDA is as described at [10] and that only one tree, T 24, is required to be removed to facilitate vehicular access to proposed lot 2. Any further tree removal could be considered on submission of any future development application for a dwelling. They say the RDA, as it applies to the site, was not established to retain views from Windsor Road to the site. According to a report quoted from the Council dated 1981, the establishment of the RDA sought to form a vegetated backdrop and boundary to Urban Development when viewed from the south and southeast.

30. The experts agree that in assessing the impact of views and applying the planning principles for assessment of impact on views established in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140, it would be concluded that the proposed development would not cause an unreasonable impact on views.

31. Mr Hurley says the photomontage prepared that illustrates a future dwelling does indicate that a future dwelling will not adversely impact on the view corridor however, he says that additional details would assist in confirmation of this fact. It is on the basis of his request for further details that proposed condition 1b was drafted. He submits the footprint of the proposed dwelling is acceptable in terms of impacts and character and, in the absence of the RDA, a photomontage would not be required. He says the further details sought are to confirm the accuracy of the photomontage and would assist any future applications that may propose to reduce or remove the RDA in the vicinity of the site.

32. He says the RDA is about a vegetated backdrop and the existing trees in the foreground provide the screening and buildings behind it, should not have any impact and would therefore be acceptable.

33. Mr Hardy says that even with the absence of a more accurate or detailed photomontage, it can be reasonably concluded that the development will not cause any adverse visual impacts to views from Windsor Road. He says there would be no purpose in preparation of further photomontage details. There is no requirement in the DCP or any other document that requires screening of the development by vegetation. The existing view corridor will not change if consent is granted, and the retention of the existing vegetation will screen any new building form and result in a suitable outcome.

34. Mr Hurley says the purpose of proposed condition 1b is a matter of record rather than something required to assist in the assessment of the application. It would be purely an information document.

35. Mr Harding says it would not be required and would serve no purpose.

Conclusion and findings

36. Mr McKee submits that the proposed condition that calls for further information has no planning purpose. Because the planning experts agree that the proposed subdivision is appropriate and will not have any adverse impacts, no further assessment is required, nor is any more information necessary.

37. Ms Rose submits that it is not unusual for conditions to be imposed that require records such as the case of photos being prepared that demonstrate the condition of a building in the case of heritage items.

38. Having regard to the evidence, I am firstly satisfied that consent can be granted to the application.

39. In relation to proposed condition 1b, I do not consider that it has any planning purpose. The evidence of the planning experts is that the existing vegetation will screen any future dwellings that would be erected on Lots 1 and 2 and that there will be no adverse impacts from the subdivision. The evidence is that the application is compliant with all relevant planning controls. I accept this evidence and, with the benefit of the site view, and the agreement of experts that the existing vegetation is well in excess of the 9m building height development standard, I conclude there would be no reason for additional details to be included on a photomontage after consent is granted.

40. I see no benefit in requiring the applicant to prepare further photomontages after consent is granted. The record of determination of the application is this judgment and the associated documentation that forms the development application as filed on the Planning Portal.

41. For these reasons, I do not agree that condition 1b should be imposed and the reference to the photomontage submitted with the application should be deleted from the approved plans.

42. The Orders of the Court are:

1. The appeal is upheld.

2. Development Application No 468/2021/ZA for a three lot subdivision of Lot 317 DP 746500, No 18 Flora Court, Baulkham Hills is approved subject to the conditions in Annexure A.

3. The exhibits are returned, other than exhibits A and 1 which are retained.

…………………………

Sue Morris

Acting Commissioner of the Court

Annexure A (251447, pdf)

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Decision last updated: 02 May 2022